Month: January 2018

Of all the great quotes of our founding fathers, my favorite comes from Patrick Henry’s speech on June 5, 1788 during the debates in the Virginia Constitutional Ratification Convention. In his speech he made the following comments:

“…for liberty ought to be the direct end of your Government…Liberty, the greatest of all earthly blessings – give us that precious jewel, and you may take everything else…Guard with jealous attention the public liberty. Suspect every one who approaches that jewel.”

Indeed liberty, the second of our unalienable rights immediately after that of life, is the greatest of all earthly blessings for without it individuals cannot have much of a life; they cannot pursue happiness or realize their dreams or potential. So it is, then, that individuals form governments to achieve order and protection of their rights within their societies. Liberty, then, ought to be the starting and ending point of government.

Yet how was government to achieve this goal of securing the blessings of liberty for Americans in 1787 and for us today, their posterity? The answer is in the clause that follows – “do ordain and establish this Constitution for the United States of America.” Our Constitution was designed to achieve precisely what Patrick Henry stated was the purpose of government. Interestingly, though, when he gave that speech, he was speaking against the ratification of the Constitution as he feared it gave too much power to the central government and thus posed a direct threat to that precious jewel of liberty.

Yet how, exactly, is the Constitution to accomplish this goal? The answer lies in the clauses that precede this one – by establishing justice, insuring domestic tranquility, providing for the common defense and promoting the general welfare. When our national government limits itself to the specifics of these broad goals as developed in the articles and sections of the Constitution that follow the Preamble, it realizes this lofty goal envisioned by Patrick Henry; when it exceeds its limited, enumerated powers as delineated in the body of the Constitution, it not only threatens our liberty, it chips away at it.

I can think of no better way to wrap up this series on the Preamble than to reiterate those eloquent words above:

“…for liberty ought to be the direct end of your Government…Liberty, the greatest of all earthly blessings – give us that precious jewel, and you may take everything else…Guard with jealous attention the public liberty. Suspect every one who approaches that jewel.”

As the election season approaches, may we all go into the voting booth with an eye of jealous attention and suspicion towards those in whom we are trusting to guard our liberties.

As I commented last week (The Preamble VII – “provice for the general welfare” (Part I)), the phrase “provide for the general welfare” has wrecked more havoc upon our country and put more of our liberties and freedom in jeopardy than perhaps any other clause in the Constitution (other than perhaps the “necessary and proper” clause). As I shared then, those who opposed the ratification of the Constitution back in 1787-1788 argued that this clause would be ripe for abuse by future politicians to put in place anything and everything they deemed to be good for “the general welfare,” and that is exactly what has happened.

So how do we convince members of Congress today that they are way out of their constitutional bounds with much, if not indeed most, of what they have done in inserting the government into our lives? The answer does not come from some lowly constitutional blogger such as myself – us “mere citizens” have no standing in the eyes of these scoffers at constitutional restraints. No, I have a better witness to rebut them – James Madison, commonly referred to as “the father of the Constitution.”

As one of the three authors of The Federalist Papers, he countered the arguments of the Anti-Federalists regarding their alarms over this phrase in essay number 41. In addressing the use of this phrase in the opening of Article I, Section 8 of the Constitution which contains the “enumerated powers” of Congress, he clearly defined the role of the phrase:

“But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.”

In other words, Madison is stating that the particular, itemized powers that follow in Section 8 of Article I are meant to define, clarify and limit the extent of the general phrase “to provide for the general welfare.” So when the question is posited as to what and how is the general welfare to be provided for via the general government, the answer is to read the list of limited powers that follow that were granted to the Congress. Anything therefore outside of that list that Congress involves itself in is instead of providing for the general welfare is destroying the general welfare. When excessive debt is accumulated to fund the myriad programs that are outside the purview of Congress’ authority, when programs rob individuals of their sense of personal responsibility and steal the personal property (of any kind) of citizens, that is not promoting the general welfare of the country but rather destroying that which made the early Americans unique, special and prosperous at its founding.

So then, just as we learned in our high school English classes in regards to writing a composition, you begin with a thematic statement that is broad and general that paints the full picture of what the paper is to be about, and then the rest of the following paragraphs develop, define and specify what is intended by that thematic statement. Such then is the meaning, and proper use and application of the phrase “provide for the general welfare.” Or as James Madison might say – “General Welfare does not mean ‘Anything you want!’”

Perhaps no more abused clause in all of the Constitution is this one regarding the “general welfare.” It has been the excuse for the national government to get involved in forcing citizens to save for retirement via the social security tax, to health care, to you name it. The clause is repeated in the opening of Article I, Section 8, which is important as I shall point out in Part II on this topic. Interestingly, when the southern states seceded and formed the Confederate States of America, their constitution mirrored the US Constitution in many ways, but glaringly omitted any reference to providing for the “general welfare.”

To ascertain the meaning of this clause I will spend this and the next (or possibly two) essay(s) taking a look at how the founders viewed this clause and how they explained it’s meaning. As I have pointed out in the beginning of this series on the Preamble, merely including this clause in it does not give any authority to Congress to do as they please in matters they determine to be for the “general welfare” as a preamble in not part of the Constitution as far as granting authority, but merely an introduction as to the purpose for those things enumerated within the Constitution.

This general welfare clause and the fear of its potential for abuse was one of the reasons those known as the “Anti-Federalists” opposed the ratification of the Constitution. The first witness I set before you is the author known by the pseudonym “Centinel”, who wrote the following on October 5, 1787:

“The Congress may construe every purpose for which the state legislatures now lay taxes, to be for the general welfare, and thereby seize upon every object of revenue.”

Consider our situation today – how much of our income does Congress “seize upon” in taxes to provide for all of the programs it deems to be for the “general welfare” yet not authorized in the Constitution? Does not Centinel’s warning ring true?

The next witness to warn about this phrase was the outstanding Anti-Federalist known by the pseudonym “Brutus.” He had much to say about the potential for abuse of all three branches of government, and he has pretty much proved to be a prophet with unerring accuracy. Herewith is some of what he had to say about this clause in his essay number VI, written on December 27, 1787:

“It will then be matter of opinion, what tends to the general welfare; and the Congress will be the only judges in the matter. To provide for the general welfare, is an abstract proposition, which mankind differ in the explanation of, as much as they do on any political or moral proposition that can be proposed; the most opposite measures may be pursued by different parties, and both may profess, that they have in view the general welfare; and both sides may be honest in their professions, or both may have sinister views…

It is as absurd to say, that the power of Congress is limited by these general expressions, “to provide for the common safety, and general welfare,” as it would be to say, that it would be limited, had the constitution said they should have power to lay taxes, etc. at will and pleasure. Were this authority given, it might be said, that under it the legislature could not do injustice, or pursue any measures, but such as were calculated to promote the public good, and happiness. For every man, rulers as well as others, are bound by the immutable laws of God and reason, always to will what is right. It is certainly right and fit, that the governors of every people should provide for the common defence and general welfare; every government, therefore, in the world, even the greatest despot, is limited in the exercise of his power. But however just this reasoning may be, it would be found, in practice, a most pitiful restriction. The government would always say, their measures were designed and calculated to promote the public good; and there being no judge between them and the people, the rulers themselves must, and would always, judge for themselves.”

It is very apparent, is it not, that the fears of these two founders regarding the abuse of this clause by those who were to come after them to justify the expansion of the power of government and the diminishment of individual liberties has indeed come to fruition? So, what was the response by those who argued in favor of the adoption of the Constitution? We will examine James Madison’ response in the next essay.